The Edjurist - Information on School and Educational Law

The copyright lawsuit against Turnitin.com has been dismissed. Andy Carving at Learning.Now has a nice analysis. I have a couple problems with this ruling. First, the judge relied heavily on the clickwrap agreement (the "I Agree" checkmark box we all check when using a service) (for the number of times the judge relied on this word "clickwrap" see the visualization of this case below). Those agreements should be given the weight we all attach to them, which is basically zip. On top of that, the students are forced to click it, so there really is no offer and acceptance here so I am not sure considering that a valid contract between parties holds a lot of weight for me. So, I am not real fond of the heavy reliance on that.

But, more importantly, Turnitin.com (more specifically their owner iParadigms) is making money off the use of the student's intellectual property. I don't really know how else to view this. When students submit their papers to Turnitin, the paper is archived to build the database (100,000 papers a day according to the case). The database of papers is what makes Turnitin function. It is the collective body of student work that is essential to the operations of Turnitin. Without the database of student work (the student's intellectual property), Turnitin would not exist and certainly would not be making as much money as they are. They are essentially making money off the work of others. This is the very reason copyright law exists, no?

The judge in the case let Turnitin off the hook on "fair use" claims. Now, I don't want to get into an extended lecture on how the fair use exception works, but this is not the typical way the "fair use" doctrine is used. Let me just give you the factors Federal law says should be used for determining where fair use is applicable (17 U.S.C. 107):

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
The nature of the copyrighted work.
The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
The effect of the use upon the potential market for or value of the copyrighted work.

Now consider the use. Commercial in nature, full-text of student original work. It seems to me that only the 4th factor could be argued to the benefit of Turnitin, but in graduate school where students are encouraged to publish their papers in journals, the article's existence at Turnitin could even get in the way of the student's future use of the work for their own profit. Basically, I just don't see it. At all. At its core this is a commercial entity making profit on the work of others, which is what copyright law is designed to protect against. The court focused on the "transformative" use of the student work by Turnitin saying that "iParadigms, through Turnitin, uses the papers for an entirely different purpose, namely, to prevent plagiarism and protect the students' written works from plagiarism." Umm, did you forget about the purpose of making money? Do you think Turnitin is doing this out of the goodness of their hearts because they want to rid the world of plagiarism? I don't think so.

Also, I want to point out that the judge used the student speech line of cases to assert that student's rights are not coextensive with the rights of adults.

Schools have a right to decide how to monitor and address plagiarism in their schools and may employ companies like iParadigms to help do so. As the Supreme Court has recognized in the constitutional context, "the rights of students in public school are not automatically coextensive with the rights of adults in other settings" and the "rights of students must be applied in light of the special characteristics of the school environment." Morse v. Frederick,127 S.Ct. 2618, 2622 (2007) (internal quotations omitted).

So, what are you saying? Student's have fewer defenses against unreasonable contracts being imposed on them? Student's have fewer rights to protect their work against commercial copyright violators? What the heck does that mean because it certainly has some important implications. One implication I drew from this opinion is that students should be assumed to have fewer rights in contract and copyright law. Of course, I would argue that students/children should have MORE protection in contract and copyright law as they are less able to protect themselves.

Overall, I feel this judge was blinded by plagiarism concerns to actual copyright law, as I feel many in our legal and education system are these days. I can't tell you how many times the judge mentioned plagiarism in the opinion (see visualization, actually for the real number). I don't want to defend plagiarists, and I certainly call it out when I see it in my classes, but the treatment of plagiarism these days reminds me a little of fear-mongering. Plagiarism is not something new and it is not something that is going to steal our children in the middle of the night ... it is just a fancy word for cheating at higher than acceptable levels. Students cheat, adults cheat, politicians cheat, the media cheats, even Shakespeare cheated a little. It happens and we as teachers should discourage it. But, just because we have given cheating a new name, "plagiarism," doesn't mean it should be used to rewrite copyright law in the United States or take away any more student rights, especially concerning their rights in their own protected work.

Finally, I will leave you with this: Let's just say that instead of archiving and using student work to make a profit, Turnitin.com used Fortune 500 business plans in the same way. Just to check for plagiarism and turn a profit while doing so. Would that case come out the same way? And, just how much plagiarism do you think it would detect?

Case Visualization: